Copyright, Designs And Patents Act, 1988 Of UK – Overview

Subject matters covered under the act

The following paper highlights the Copyright, Designs and Patents Act, 1988 of the UK, which is one of the important regulatory bodies in the United Kingdom for granting copyright protection. Moreover, the paper will include what subject matters have been covered under the act to which the protection has been granted under the act and what subjects are being excluded from its regime, the discussion paper will be based around discussing the United Kingdom approach towards protecting certain specific categories of the work in European Union, which will be discussed through the judgment of the Levola Hengelo v Smilde Foods which is considered as an authority on the subject that whether the taste of the food should be provided the consumer protection or not.

Through the application of the different approaches that have been adopted by the European Union as well as the United Kingdom to provide protection to all those classes of the literary and artistic works which qualify the eligibility of being capable of protection, including the main area as to whether the closed systems of copyright-protected works are compatible with European Union Laws or not.

The main purpose of providing copyright under Intellectual Protection is to extend protection to those artistic and literary works which have been the original creation of the author, from being copies or misused[1]. The copyright, Designs and Patents Act 1988, also known as the CDPA, is a Parliamentary Act, was enforced on 15 November 1988. It is the regulatory authority in the UK for the Legislation relating to copyright, which is covered under the Copyright Act, 1956

Article 1(1) of the Copyright, Designs and Patents Act, 1988 defines Copyright and copyrighted works as

• Copyright being the property subsisting in accordance in the following manner
• Original artistic works, literary work, dramatic or musical works,
• Films, broadcasts, and sound recordings
• Arranged publication editions.
• In this Part “Copyright Work” implies any such work of those descriptions which consists of copyrighted material.
• Copyright never exists in any work until the conditions for the applicability for copyright protection are met[2].

The main focus is on Article 1(1) of the act of the United Kingdom which protects the rights of the works of authors by covering them under copyright. The rights which are specifically protected under the ambit of copyright are have to be scrutinized before granting them the rights that whether they pass from the following category within one of the descriptions of the work mentioned under the act. If they pass, then whether the certain work do possess originality or not[3]. And lastly whether the particular work is eligible for protection under the act or not. The various kinds of works which are protected under the category of copyright protection are musical works, dramatic works and the literary works which needs to be written and must be granted copyright from the date of recording of the work takes place, literary works includes the databases, compilations and computer programs[4].

 Under the CDPA Act, Section 3(1) of the act defines literary works, which means any work under the category of musical or dramatic work been either sung, spoken, or written and involves a compilation of computer programs, and the database. In the case London Press v University Tutorial Press[5], the court held that the literary works can be copyrighted and attract the protections irrespective of their literary and scientific merits. Copyright works are covered under the Patents Laws of the United Kingdom which protects the works of an author and stops other people the world at large from using it without any authority[6].

Discussion of United Kingdom’s approach towards protecting specific categories of work in the European Union

Copyright is that particular class of Intellectual Property right which protects certain rights of the authors from the infringement. Subject matter is protectable in different copyright jurisdictions through two kinds of approaches. Firstly, is the open ended approach and the second is the closed ended approach[7].

Open ended approach does not cover those subjects which are copyrightable rather it requires common areas of work to be the subject of copyright. Whereas the there is closed list approach identifying the list of jurisdictions which provides the protection to the copyright regimes to various subject matters for ex: Musical, artistic, literary works, which is not don under the open ended approach, it does lack in this context[8].The closed list approach is covered by the jurisdictions of the Australia, United Kingdom and India as a result of this approach the non-conventional works such as computer-generated patterns, graffiti, and perfumes will ultimately fall out of the copyright protection[9].

The United Kingdom covers very few subject matters under its regime of copyright and the legislation that is followed in the United Kingdom is the Copyright, Designs and Patents Act, 1988, codifying the copyright regime. According to the CDPA, it follows the closed system approach whereby 4 are authorial and 5 are of entrepreneurial works to whom the protection is afforded under the act[10].

 The CDPA in the United Kingdom classifies copyrighted content into different categories, the closed list approach which does protect the rights of those qualifying under the category have adverse effects on those who are not covered under the same category, incapable of being provided the copyright protection. The closed list approach contains various aspects like authoritarian works which must also establish that the work has been recorded or published and is covered specifically under the category of the authorial works the same protection is not provided under the closed-end approach. Secondly closed lists contain the literary works which have to be established under the same category which is also not been given under the open-ended approach as it does not provide protection to the such artistic and literary works.

Third is the Dramatic work under which the work should be in the recorder form either it be a Dance or Mime, must be recorded in order to grant protection, the same kind of protection is not covered by the former approach as it somewhere lacks the ideal requirements. In the case Green v Broadcasting Corporation of New Zealand[11], the court stated that copyright protection granted on subject matter to the plaintiff is not considered a copyrighted subject matter to be given protection being a dramatic work, it lacked creativity[12].

The third is the musical Works, which includes the combination of the sounds, notes, and chords for listening. Fourth covers the artistic works, in the case Harpon v. Merchandizing corporation[13], the court refused to grant protection to the makeup done on the face of a famous pop star, on the ground that facial painting is not covered under the category of the art. Photographs, it is often considered as the recording of light with the help of any mode through which an image is produced which is not a part of the film. Last is the Sculptures and collages, which is defined as the casts or model created for the purposes of any sculpture. In the case Creation Record Ltd v. News Group Newspaper Ltd[14], the court held: Plaintiff’s pictures which had the use of various props do not be considered collage and thus were not afforded protection[15].

Comparison of different approaches adopted by European Union and United Kingdom

However, there are certain categories of subject matter that are not covered under the protection of the copyright are the visual works, any other kind of works including the sensory perception such as smell taste, or touch from gaining the protection are not accorded the protection under the copyright as they are covered under the category of the open ended approach, In the case Levola Hengelo v. Smilde Foods[16], court refused to grant the protection of copyright to the taste of certain category of cheese, as it belonged to the category of the open ended approach and is not covered under the closed category approach[17].

Further, the court held that a sense of taste cannot be objectively ascertained and is thus not covered under any of the categories of the copyright thus, strained from the copyright protection. Further, In the case Ladbroke v William Hill[18] the point that was considered in the case was that originality is controversial in nature, and the court while examining the authoritarian works, was only bothered as to how the work is expressed rather than assessed applying the underlining ideas[19].

Though the Copyright laws of United Kingdom provides protection to certain kinds of the works which are covered under the ambit of the categories that have been mentioned above. There are certain categories of the work which are not included in the closed-ended approach of the United Kingdom laws and are generally categorized under the open-ended details. These are the non-conventional works such as graffiti, computer-generated patterns, perfumes etc. along with that the smell and tastes of the product which can be either cheese ort scents cannot be granted the protection under the category of the copyright as they do not qualify any of the categories that are mentioned above, such kind of works neither fulfills the requirements under the closed end approach nor under the open ended approach thus they remain outside the domain of any kind of protection been accorded to them[20].

In the case Levola Hengelo v. Smilde Foods[21], in the case the plaintiff sold a famous cheese by-product and it contended that the defendant Smildie foods also sold the similar kind of cheese thus causing the infringement to the rights of the works by the plaintiff, thus argued that the taste of the cheese, made by the plaintiff should be covered under the copyright protection. So the issue that was raised in the case was whether the taste of any food item though being the original work of the creator but not being the literary of artistic work is subjected to copyright protection under the act or not. The court in the following case held: the taste of the food cannot be subjected to copyright protection. Further it added that the taste of the food product only qualifies for copyright protection only when it can be described as the work under the provided Infosoc Directive[22].

Moreover, work to exists under the category of copyright, the subject matter that requires protection under copyright should be expressed through ways that create the taste sensation as those experiences which are subjective and variable as all this depends on the factors that are particular to the tasting of any particular person concerned. Thus, the taste of the food item will not be termed as work and cannot be given protection under the category of copyright protection. In general terms, it is said under copyright expressions are protected instead of the ideas. However, there are certain categories of the exceptions which are provided partial protection under the copyright act of the United Kingdom as follows, private study and Non-Commercial research- copying the limited extracts of the works while using it for non-commercial or private study for that purpose copying only a few of the part and not the entire work[23].

Categories of works protected under the act

Another kind of work that is allowed under copyright protection is fair dealings for the reporting, review, and criticism for the current events, reasonable dealing for reporting the current events is allowed. Under the teaching, partial copyright protection is allowed as long as the purpose of copying is solely for illustrating or teaching any point, for the purpose of parody, caricature and pastiche there is an exception provided under copyright to use the work for the same purpose but that to the limited extent. In case of sufficient acknowledgement, the exception of copyright is extended only to copy someone else’s work, but for the same, the only requirement is to acknowledge the person properly[24].

Both United Kingdom and European Union follows a particular approach under the copy right protection regime. There are often two approaches which are followed by under the copyright protection, such a protection can only be effective if it is capable of identifying a particular work which can provide whether protection can be granted and whether there is any infringement or not[25].

Closed list system defines all those categories of subject matter which has the advantage of legal certainty, United Kingdom follows the approach of the same and provides protection only to certain types of works. While the open ended approach comprises of the feasibility of allowing protection to any kind of work till the time it fulfills certain qualifying criteria, European Union approaches the copyright protection regime through this criteria, granting the Copyright protection to various works, things, so long as they continue to meet the eligible criteria’s[26].

The copyright law has been harmonized between United Kingdom and European Union through the Trade and Cooperation Agreement between both the countries, maintaining the high standards of copyright between both the nations. Most of the copyright laws in the United Kingdom have been borrowed from the European Union, the copyright law in the Country is mostly been applicable within the European Union only and is based on the Berne Convention for protecting artistic as well as literary works and all members states of EU have been the parties to the Convention[27].  The copyright laws were harmonized to a large extent across the European Union and most of the legislative framework in the United Kingdom has been adopted by the European Union Regulations and directives. Before Brexit, the main sources of copyright legislation comprise both the United Kingdom and the European Union, the main statute which governs copyright in both countries was the Copyright, Designs and Patents Act, 1988 also called CDPA and various amendments have been allowed to amend both the copyright directives. In EU main legislation that has been followed and often considered as the main directives are the on copyright and the related rights, Directive 2009/24/EC provides legal protection to computer games, Directive 96/9/EC on providing legal protection to databases, and lastly, Directive 2011/77/EU on the condition of providing legal protection to copyright and certain other rights[28].

Besides that, the United Kingdom has been a member signatory to various treaties, agreements and conventions which requires the authors of the copyrighted works to have access to similar rights and protection for their works, various conventions to which United Kingdom have been a signatory to are WIPO Berne Convention for protecting Literary and Artistic works, 1971(Berne convention), which directly accords an automatic protection to the members without any prior registration[29]. The other one is Universal Copyright Convention provides the conventional protection on the works being marked on the symbol. Agreements on Trade-related Aspects of Intellectual protection also form part of the WTO agreement. WIPO Copyright Treaty, 1996. The UK has been a continuous member as well as signatory to all these treaties and conventions besides being a member of the treaties or conventions with the European Unions. One of the main issues earlier was that these instruments were not directly self-executing as a result were not directly applicable to the private parties as a source of laws[30]. On the other hand, the regulations of the EU are mostly binding and do not require the implementation of the national legislation, however, these regulations are being followed by the United Kingdom as it was a part of the union till 2019 and if the United Kingdom does not follow or implement the directives correctly than it will be liable for the infringement procedures under Articles 226 or 227 of the treaty which has established the European Community when failed to fulfill a treaty obligation. In the case, Marleasing SA v. La Commercial Internacional de Alimentacion [31]court interpreted the national legislation in the light of wording and purposes of the EU Directives. This judgment further elaborated that the decisions are elaborated by the decisions of the Supreme Court, binding all the other courts, and the Court of Appeal is binding all the high courts as well as the lower courts[32].

Closed system versus open-ended approach in copyright protection

Under the United Kingdom, there are two basic requirements for a work to be granted the copyright protection, firstly, status of the author with regard to the work and second is that the author must be a British Citizen who has been residing in United Kingdom and the work should have been published either in United Kingdom itself or any other country to which the CDPA extends. In the case, GS Media v Sanoma Media Netherlands[33]the European court of Justice, introduced knowledge as being the infringement of public communications, in relation to content placed on the internet and which has been copied without the permission of the author[34]. In the case, Stichting Brein v. Filmspeler[35], in this case, the reasoning was provided for the sale of multimedia players being installed with the ads which were hyperlinked to the websites which hosted the same and thus violated the copyright regulations, the European Court of Justice held, it conveyed the messages to the public as the players were exchanged with the knowledge that the hyperlinks that were served gave access to the illegally published work with an intention to make the profits[36].

The courts of the UK were bound by the decisions of the ECJ and the judges were also permitted to refer the precedents from that previously decided cases on the ECJ for binding any initial decision, on the interpretation or validity of EU Law, but the national courts of UL were still competent for the original cases[37].

The approach that is followed by the European Union is an open-ended approach that provides protection to every sort of intellectual property but the only requirement under it is that it has to be meet the standards to fulfill the set criteria to be eligible for copyright protection. While the United Kingdom follows the closed-ended approach which, which has been adopted from various international treaties it has been entered with and is though not entirely dependent on the membership with European Union for the copyright protection[38]. Though now United Kingdom has existed the European Union through Brexit and is no longer connected with the laws of European Union, so all the majority of United Kingdom and European Union copyright works have enjoyed the mutual protection in each other’s territories as they have participated in the international treaties on international basis[39].

The copyright in the United Kingdom is currently framed by the national legislation in accordance to give effect to terms of international treaties such as the Berne Convention of 1886, and most of the areas of copyright law have been harmonized with the European Union Directives, whereas for the general copyright protection such as sound recordings, dramatic, musical, artistic works,  ilms, broadcasts, have no impact on the existing regime through the Brexit, any dispute relating to the copyright will remain the matters of the United Kingdom[40].

 Since the Brexit the UK has existed itself from the European union it has though continued to follow the legislations and precedents which have continued to have been applied to[41]. But the government of the UK has now enforced the European Union (Withdrawal) Act, 2018 with the aim to end the direct impact of the European Union law over the United Kingdom and to curb the ECJ Jurisdiction Overall United Kingdom[42].

Coverage of subject matters in United Kingdom’s copyright regime

Though United Kingdom will continue to be a part of the EU registered community design system during the entire phase but the already registered copyrights will continue to extend be a part of the agreement[43]. Apart from that since the United Kingdom follows a closed approach system it does not include everything under its domain for providing or extending the copyright protection to everything and is limited to include only a few of the works such as Literacy, artistic, dramatic etc[44]. whereas the European Union which follows the open approach system includes or extends its protection approach under the copyright category to everything so even it extends to certain kind of graffiti’s or perfumes so long it fulfils the criteria to be able to cover under the category of the eligibility of the copyright protection. However, the copyright protection under the United Kingdom is provided without any fees, one gets copyright protection automatically and does not have to apply for the same[45].

The statutory regimes which governs the copyright protection has though afforded various copyright protection to the variety of the lists mentioned under the category of the same framework[46]. With the current Brexit situations the closed list approach does not extend to the same and though the European Union allows everything but there are certain categories to which it also does not extend any protection as it does not qualify the criteria to be eligible for the protection, such as it does not cover the taste of the food products created by the owner to be covered under the same category[47].

Before the Brexit it uses to follow the laws and regulations that were implemented by the European Union as it was a part of the same and it had borrowed mist of the precedents form their only, but since it has left now so these laws are though no longer applicable but it will continue to apply the precedents until it formulates its own case laws[48]. So while formulating its own case laws it needs to reform its laws. Currently, in the United Kingdom, there is a restricted approach that is followed under the applicability of the generic copyright laws, which provides the current legislative regime for the protection to the copyrighted matter in the United Kingdom it should adopt the approach for extending the copyright protection to the variety of subject matters and should be more flexible and non-exhaustive towards the categorization of the same[49].

Conclusion

The above paper highlighted the Copyright, Designs, and Patents Act, 1988 of the UK, which is one of the main regulatory bodies in the United Kingdom for granting copyright protection. Moreover, the paper will include what subject matters have been covered under the act to which the protection has been granted under the act and what subjects are being excluded from its regime, the different approaches that have been adopted by both the United Kingdom and the European Union to provide the protection to all those categories of the literary and artistic works which qualifies the eligibility of being capable of protected.

Different categories of copyrighted content

The copyright protection in the United Kingdom is provided to the limited amount of the works under the regime, which is the Copyright, designs, and Patents Act 1988, Article 1(1) of the act protects the rights of the authors by covering them under the category of the copyright, moreover the rights which are often granted the copyright protection are always scrutinized before granting them the specific protection under the category of the same.

 The United Kingdom follows the CDPA, which provides the various definitions under the act, Section 3(1) of the act defines the what is covered under the category of the copyright regime. United Kingdom follows very few of the subject matters under the regime of the copyright legislation and the legislation that it follows is the Copyright, designs and the Patents Act, 1988 which codifies the copyright regime currently. However, there are certain categories of the work that are not included in the category and are the non-conventional works such as perfumes, graffiti’s and computer generated patterns along with that it prohibits the inclusion of the taste and smell of the products to be granted protection under the category of the copyright as they do not qualify the criteria. Following the Brexit, United Kingdom is no longer bound to follow the European Union for the copyright protection of the copyright though it will continue to follow the precedents of the European Union, this is the time it should implement its own laws in a much better way. 

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The Copyright, Designs and Patents Act, 1988

The Copyright Act, 1956

European Union Regulations and directives

WIPO Berne Convention for protecting Literary and Artistic works, 1971(Berne convention)

WIPO Copyright Treaty, 1996

Berne Convention of 1886

European Union (Withdrawal) Act, 2018

Case Laws

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Marleasing SA v. La Commercial Internacional de Alimentacion SA (C-106/89)

GS Media v Sanoma Media Netherlands(C-160/150)

Stichting Brein v. Filmspeler C-527/15